Krishan Kumar vs Mohd. Yahudin and Others

Kailash Gambhir, J.—The present appeal arises out of the award of compensation in an injury case passed by the learned Motor Accident Claim Tribunal on 26th November 1993. In the said award the learned Tribunal has awarded a compensation for injury amounting to Rs. 95,625/-

The brief facts of the case are contained as under:

The appellant claimant, Sh. Krishan Kumar, aged 21 years, was a student of I.T.I., Nizamuddin where he was undergoing training for fitter trade and was in the final year. On 26th June 1986 after coming from the institution, the appellant claimant was standing at the Nizamuddin bus stop to board a bus of route No. 410. A bus bearing registration No. DEP- 6948 reached the bus stop and while Sh. Krishan Kumar was boarding the bus, the driver Mohd. Yahuddin abruptly started the bus, which caused a jerk resulting in the sudden fall of the petitioner claimant from the footboard of the bus. As he fell on the road, his right foot came under the rear wheel of the said bus. Besides the crush injury sustained in the right leg, he also sustained injuries in the right hand and right wrist. He was taken to the Northern Railway Central Hospital, Connaught Place, New Delhi for treatment. Petitioner remained admitted in the hospital from 24th June 1988 till 25th October 1988 and during this period three operations were conducted and he was given blood transfusion. On account of the injuries, the petitioner appellant developed foot drop and problems in walking, running and jumping.

The counsel for the appellant Mr. Y.R. Sharma assailed the said award of learned Tribunal on various grounds. Firstly, he contended that the Tribunal erred in awarding a meager amount of Rs. 25,000/- for 20% permanent disability. Secondly, he stated that Tribunal erred in not awarding any compensation on account of future prospects and future employment chances. Thirdly, he urged that the leaned Tribunal has erred by awarding a lower rate of interest and the same should have been 21%.

On the contention of compensation for the permanent disability the counsel has pleaded that the amount of Rs. 20,000 awarded towards the compensation for the permanent disability of 20% is arbitrary, unjust and inadequate. He sought help of multiplier method and the income of the injured to be assessed according to the minimum wages applicable in Delhi applicable to graduates at that time. Second contention of the counsel is that the Tribunal failed to assess the future prospects of the petitioner appellant, as he was a young lad, having completed his graduation from Delhi University and was doing a specialization course in Fitters Trade. He had a bright future ahead of him and the same was compromised due to the accident, argued the counsel. On the ground of loss of income during treatment, he has stated that the same should have been assessed for five years as the petitioner appellant had to receive treatment for the said period to fully recover from the serious accident whereby he was operated thrice. The award is sought to be enhanced further on the ground of medical expenses.

The counsel has relied on the following judgments in support of his contentions:

(1) Shashendra Lahri Vs. UNICEF and Others, ;

(2) Abati Bezbaruah Vs. Dy. Director General Geological Survey of India and Another, ;

(3) Chellammal and Ors. v. Kailasam and Anr. 2006 ACJ 854 .

Nobody has been appearing for the respondents.

I have heard counsel for the appellants and perused the record.

On perusal of the award it comes in to light that the tribunal awarded Rs. 1125/- towards medical expenses; Rs. 2,100 towards purchase of blood for blood transfusion; Rs. 24000/- towards special diet; Rs. 8400/- towards loss of income; Rs. 25000/- towards permanent disability and Rs. 25,000/- towards mental pain and sufferings, the sum total of the same comes out to Rs. 85,625/- along with interest @ 12% per annum.

The counsel seeks enhancement under all the above heads of damages.

The possession of one''s own body is the first and most valuable of all human rights and while awarding compensation for bodily injuries this primary element is to be kept in mind. Bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damages varies on account of gravity of bodily injury. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Court and Tribunal should make an honest and serious attempt to award damages so far as money can compensate the loss. Regard must be given to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. Damages awarded in personal injury cases must be substantial and not token damages. The general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum as will put him in the same position as he would have been in if he had not sustained the injuries.

For the purpose of compensation, the damages have been classified in to pecuniary and non-pecuniary damages and in this regard in The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Another, , the Hon''ble Apex court observed as under:

This Court in R.D. Hattangadi v. Pest Control (India) (P) Ltd. laying the principles posited:

Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:(i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

When the computation of compensation is being carried out by the court, it is the duty of the party claiming the same to bring on record the relevant documents in support of the claims made under different heads of damages. In the absence of anything being brought on record, the compensation under such heads shall not be awarded, to the extent claimed, by the tribunal. In this regard, the Hon''ble Apex court has observed in Lata Wadhwa and Others Vs. State of Bihar and Others, as under:

In examining the question of damages for personal injury, it is axiomatic that pecuniary and non-pecuniary heads of damages are required to be taken into account. In case of pecuniary damages, loss of earning or earning capacity, medical, hospital and nursing expenses, the loss of matrimonial prospects, if proved, are required to be considered. In the case of non-pecuniary losses, loss of expectation of life, loss of amenities or capacity for enjoying life, loss or impairment of physiological functions, impairment or loss of anatomical structures or body tissues, pain and suffering and mental suffering are to be considered. But for arriving at a particular figure on each of the aforesaid heads, the claimant is duty-bound to produce relevant materials, on the basis of which, a determination could be made, as to what would be the best compensation.

Based on the aforesaid legal parameter, it would be noticed that no evidence to show the expenses incurred by the injured on his medical treatment except to the extent of proving expenditure of Rs. 1125, on the basis of the medical bills exhibited as Ex PW 7/1 to 7/17, was placed on record, Therefore, no enhancement can be made under this head of damages.

As regards the compensation of Rs. 2100/- towards purchase of blood for blood transfusion, the tribunal awarded the same on the basis of the evidence produced on record, exhibited A1-A7, Therefore, the same also does not warrant any interference.

The appellant suffered lacerated wound on his right ankle, right knee with abrasions in the right hand and right wrist. Also, it is on record that the X-ray report revealed that the appellant had sustained fracture medical malleolus right tibia. Also, the doctor, Dr. Sharma deposed that the appellant had developed hematoma up to middle of the thigh with blackening of the skin and Therefore, skin had become dead and skin grafting was done, also it was deposed by him that the appellant had developed foot drop in the left foot. It is also on record that the appellant is suffering from 20% permanent disability. It has been deposed by the appellant that he has difficulty in walking, running, wearing shoes and passing stools. The appellant will have to live his entire life with such problems; Therefore, I feel that the same is a meager amount and should be enhanced to Rs. 50,000/-. I enhance compensation towards permanent disability to Rs. 50,000/-.

Award under the head pain and suffering compensates an injured person for the physical discomfort and emotional response to the sensation of pain caused by the injury itself. Pain is physical; suffering is emotional. While pain is the physiological response to certain stimuli, suffering is psychological or emotional response to pain. There cannot be an absolute measure to determine compensation for pain and suffering but some guidance can be had from the extent of injury and the period of hospitalization coupled with the disability suffered. The tribunal has awarded Rs. 25,000/- towards mental pain and sufferings. The appellant remained hospitalized only for one and a half month and after that he was opined by the doctors to attend OPD, Therefore, the compensation of Rs. 25,000/- granted by the Tribunal cannot be considered to be on the lower side.

The tribunal has awarded Rs. 8400/- towards loss of income. On perusal of the award it comes in to light that the appellant lost one academic year due to the accident. After completing his studies and the training, the appellant tried to look for the job but was unable to find one. The appellant at the time of filing the claim petition and even at the time of decision of the award was enrolled with Employment Exchange but was unemployed. The classmate of the appellant, Sh. Shri Bhagwan deposed that after training he got a job and started earning at Rs. 7,000/- pm. On the basis of the above observation, I feel that the tribunal erred in awarding a meager amount towards loss of income. The tribunal ought to have followed the multiplier method while awarding compensation towards loss of income. Though, classmate of the appellant, Sh. Shri Bhagwan deposed that after training he got a job and started earning at Rs. 7,000/- pm but same cannot be assumed to be the income of the appellant.

It is no more rest integra that mere bald assertions regarding the income of the deceased are of no help to the claimants in the absence of any reliable evidence being brought on record.

The thumb rule is that in the absence of clear and cogent evidence pertaining to income of the deceased learned Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act.

In the instant matter, appellant was a graduate from Delhi University, Therefore, income of the graduate under the Minimum Wages Act at the time of the accident should be taken to assess the income of the appellant. Further, on perusal of the documents and certificates placed on record, it becomes manifest that future prospects should also be granted to the appellant.

On the basis of the discussion, the income of the appellant would come to Rs. 1347/- after doubling Rs. 898/- to Rs. 1796/- and after taking the mean of them. After considering 20% disability and after applying multiplier of 16 the compensation towards loss of income would come to Rs. 51725.

The tribunal has not granted anything towards loss of marriage prospects and compensation towards conveyance expenses loss of enjoyment and amenities of life, I award an amount of Rs. 50,000/- towards the same.

As regards the issue of interest that the rate of interest of 12% p.a. awarded by the tribunal is on the lower side and the same should be enhanced to 21% p.a., I feel that the rate of interest awarded by the tribunal is just and fair and requires no interference. No rate of interest is fixed u/s 171 of the Motor Vehicles Act, 1988. The Interest is compensation for forbearance or detention of money and that interest is awarded to a party only for being kept out of the money, which ought to have been paid to him. Time and again the Hon''ble Supreme Court has held that the rate of interest to be awarded should be just and fair, depending upon the facts and circumstances of the case and taking in to consideration relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time and other economic factors. In the facts and circumstances of the case, I do not find any infirmity in the award regarding award of interest @ 12% pa by the tribunal and the same is not interfered with.

In view of the above discussion, the total compensation is enhanced to Rs. 3,03,950/- from Rs. 85,625/- /-. The differential amount shall be paid to the appellant with up to date interest @ 7% per annum from the date of filing of the petition till realization by the respondent insurance company.

With the above direction, the present appeal is disposed of.